Recent Scottish cases illustrate the conflicting attitudes of local and central Government towards offshore petroleum development, and reveal the inability of established legislation to accommodate changing circumstances.

In Argyll and Bute District Council v. Secretary of State for Scotland 1977 S.L.T. 33, the appellant local authority failed to defeat a ministerial ruling that planning permission was not required for the construction of gravity production platforms beyond low-water mark in Loch Fyne. This verdict is interesting, because the court accepted that the sites lay within the geographical boundaries of the local Government area. Thus, the decision is contrary to an English determination by the Minister of Town and Country Planning in 1949, despite the correspondence between the respective national statutes.

The case rested on the interpretation of Schedule 22, paragraph 71, of the Town and Country Planning (Scotland) Act 1972, which concerns the execution of works on “tidal lands below high-water of ordinary spring tides.” On the basis of this expression and the traditions of Scottish planning law, the Second Division of the Court of Session professed to divine Parliament’s intention that the scope of the current enactment should terminate at low-water mark. Yet, their Lordships were, perhaps, unaware that the provision in question is a standard formula, which has not merely recurred in both English and Scottish planning statutes since 1932, but appeared previously in land drainage and fishery legislation, and may be traced to local harbour Acts. The most plausible inference, therefore, is not that Parliament deliberately excluded the sea bed from planning control, but rather that no serious consideration was devoted to the matter. Only when faced with the prospect of local interference in offshore activities, did the Government appreciate the necessity of imputing jurisdictional limits, in order to circumvent potential impediments to the recovery of North Sea oil.

The problem is due partly to the derivative methods of parliamentary draftsmanship, whereby extracts from earlier enactments are inserted into new Bills, although the context may be significantly different. Another instance occurs in the Sea Fisheries (Shellfish) Act 1967, which was also cited in evidence. In its amended form, this regulates the cultivation of molluscs on the shore and bed of the sea “within waters adjacent to Great Britain to a distance of six nautical miles measured from the baselines from which the breadth of the territorial sea is measured.” Paradoxically, although the designated area consists predominantly of sea bed, it is described by the generic title of “the sea shore.” The origins of this confusing usage can be found in the repealed Oyster and Mussel Fisheries Act 1866 and the Sea Fisheries Act 1868, Part III, which did not envisage modern fishing zones, but were concerned essentially with shellfish on or near the foreshore.